93 Decision Citation: BVA 93-10362
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-23 716 ) DATE
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Sitting at San Diego, California
THE ISSUE
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for otitis media.
2. Entitlement to service connection for hearing loss.
3. Entitlement to an increased rating for pansinusitis,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Associate Counsel
INTRODUCTION
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from determinations of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Diego, California.
A January 1992 letter from the RO informed the veteran that
if no new and material evidence were received within 60 days
with respect to his attempt to reopen his claim for service
connection for otitis media, his claim would not be
reopened. In a February 1992 rating decision the RO denied
service connection for hearing loss and an increased rating
for the veteran's service-connected pansinusitis. The
veteran served on active duty from January to July 1944.
His notice of disagreement with the decisions of the RO was
received in April 1992. The RO issued statements of the
case in June and July 1992, and the veteran's substantive
appeal covering all the issues was received in September
1992. The veteran's representative, Disabled American
Veterans, submitted written argument on his behalf in
October 1992 and assisted him with presentation of testimony
at a hearing before a member of the Board sitting at the RO
in December 1992. Later that month, the case was received
and docketed at the Board in Washington, D.C.
REMAND
At the December 1992 hearing, the veteran testified that he
had had otitis media as a small child, but as a teenager he
had had no trouble with it. He testified that at the time
he entered service, he had been asymptomatic for several
years and not been to an ear doctor immediately before
service. He also testified that at the time of his
induction examination, he was getting over a cold but that
he had no problem with his ears at the time. He testified
that at the time of his induction examination, it was a
surprise to him that subacute right otitis media was noted
by the examining physician. He further testified that after
entering service, part of boot camp included swimming and
participation in water polo games, which caused his head to
fill with water. Thereafter, he developed a fever and
earache and was treated with sulfa drugs in sick bay. At
that time the diagnosis was acute otitis media. Thereafter,
his ear continued to drain, and he was hospitalized from
March until June 1944, during which time he was treated for
his ear condition and was finally sent to a convalescent
hospital from which he was discharged from service. He
testified that at the time of the discharge board
proceedings he was informed that he had been diagnosed as
having pansinusitis.
Review of the record reveals that in a May 1945 medical
certificate, Arthur T. Gage, M.D., stated that he had
treated the veteran from September 26, 1944, to October 7,
1944, for acute otitis media of both ears and for right
maxillary sinusitis. He stated that his certification was
based on his office records. However, copies of those
records are not in the claims file and should be obtained.
Further, in a March 1949 letter Dr. Gage reported that he
first treated the veteran February 24, 1929, and at that
time the diagnosis was acute otitis media, right ear,
incised drum. He also stated that he treated the veteran
December 8, 1932, and the diagnosis was acute otitis media,
right ear, incised drum. Finally, he stated that he had
treated the veteran on December 18 and 19, 1943, for acute
sinusitis. Copies of Dr. Gage's office records concerning
the treatments to which he referred in his March 1949 letter
would be pertinent to the veteran's claim and should also be
obtained.
Further review of the claims file reveals that at a November
1948 VA examination, the veteran gave a history of treatment
for his sinuses by a Dr. L. Jankay in Highland, California,
in April 1945. Records concerning this treatment could also
be pertinent to the veteran's claim and should be obtained.
Further, at an October 1961 VA examination, the veteran
referred to having had drainage from his left ear in 1957
and from his right ear in 1960. He stated that he had
received treatment in 1960 and 1961 at Samsum Clinic in
Santa Barbara, California. An attempt should be made to
obtain treatment records for the veteran from that clinic.
Also, at the December 1992 hearing, the veteran testified
that he had received treatment for his ears from
Dr. Sadayama in Redlands, California, in approximately
1974. An attempt should be made to obtain treatment records
from that physician.
Review of the claims file also reveals that in various
statements the veteran has reported that he has undergone
extensive surgeries on his right and left ears, which
included treatment for cholesteatoma. Specifically, it is
reported that he underwent surgery on his right ear in
December 1975, October 1976, July 1977, and May 1978 at the
VA Hospital in Long Beach, California. The veteran has
stated that at the time of his December 1975 surgery, the
surgeon inquired as to whether he had had a prolonged period
of ear infection and told him that cholesteatoma could be
caused by a prolonged ear infection that had occurred 30 or
more years earlier. The veteran has also stated that he
underwent surgeries at the J. L. Pettis Memorial Veterans
Hospital in Loma Linda, California, in November 1979,
February 1982, April 1983, and May 1986. Hospital summaries
and operation reports for all of these surgeries could be
pertinent to the veteran's claim and should be obtained.
Also, we note that at the December 1992 hearing, the veteran
reported that he received continuing treatment for his
otitis media approximately every 3 or 4 months.
VA has a duty to assist a veteran in the development of
facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103 (1992). The United States Court of
Veterans Appeals has held the duty to assist includes
obtaining adequate and contemporaneous VA examinations.
Littke v. Derwinski, 1 Vet.App. 90 (1990). The February
1992 VA examination did not include an evaluation of the
veteran's service-connected pansinusitis, nor did it include
an evaluation of the veteran's claimed hearing loss. In
light of the foregoing, the Board finds that further medical
development, as specified below, is warranted.
Accordingly, the case is REMANDED to the RO for the
following actions:
1. The RO should attempt to obtain
copies of hospital summaries and
operation reports for the veteran from
the VA medical facilities in Long Beach
and Loma Linda, California. The records
should include those pertaining to right
ear surgery at the VA Hospital in Long
Beach in December 1975, October 1976,
July 1977, and May 1978. It should also
include records pertaining to left ear
surgery at the J. L. Pettis Memorial
Veterans Hospital in Loma Linda, in
November 1979, February 1982, April 1983,
and May 1986. In addition, the RO should
attempt to obtain copies of pertinent
outpatient treatment records for the
veteran from those facilities dated from
May 1986 to the present.
2. The RO should contact the veteran and
request he provide the names, addresses,
and approximate dates of treatment for
all health care providers from whom he
has received treatment for any of his
claimed disabilities at any time since
service. With any necessary
authorization from the veteran, the RO
should request copies of pertinent
treatment records which have not been
previously obtained. In any event, the
RO should attempt to obtain and associate
with the claims file copies of treatment
records from the following:
a. Arthur T. Gage, M.D., Redlands,
California, dated from February 1929
to October 1944;
b. L. Jankay, M.D., Highland,
California, dated in 1945;
c. Samsum Clinic, Santa Barbara,
California, dated from January 1960
to December 1961; and
d. Dr. Sadayama (whose full name
should be requested from the
veteran), Redlands, California,
dated in 1974 and 1975.
3. Then, the RO should arrange for VA
ear, nose, and throat and audiology
examinations of the veteran to determine
the nature and extent of his
service-connected pansinusitis and the
nature and extent of his claimed hearing
loss and otitis media, or residuals
thereof. The ear, nose and throat
specialist should be requested to review
the information in the claims folder and
provide an opinion, with complete
rationale, as to whether any otitis media
that may have existed prior to service
increased in severity during service,
and, if so, whether the increase was due
to the natural progress of the
condition. The ear, nose and throat
specialist should also be requested to
provide an opinion, with complete
rationale, as to the relationship, if
any, between any current otitis media, or
residuals thereof, and the veteran's
inservice otitis media, taking into
account the apparent lack of treatment
for the condition between late 1944 and
the late 1950's or early 1960's. Also,
the examiners should be requested to
provide an opinion, with complete
rationale, as to the etiology of any
current hearing loss, including whether
any otitis media caused or contributed to
the disability.
4. Thereafter, in light of the evidence
obtained pursuant to the requested
development, the RO should readjudicate
the issue of whether new and material
evidence has been submitted to reopen a
claim for service connection for otitis
media, entitlement to service connection
for hearing loss, and entitlement to an
increased rating for pansinusitis.
If the veteran disagrees with any decision of the RO, and if
otherwise appropriate, a supplemental statement of the case
should be issued, and the veteran and his representative
should be provided an opportunity to respond. Thereafter,
the case should be returned to the Board for further
consideration, if otherwise in order. By this REMAND, the
Board intimates no opinion as to any final outcome
warranted. No action is required of the veteran until he is
notified by the RO.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JOHN J. CASTELLOT, SR., M.D.
ROBERT E. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).